New India Assurance Co. Ltd. vs VIJENDRA LAL

THIS is an appeal against the order dated 13.5.2002 passed by the District Forum, Uttarkashi whereby the complaint of the complainant was allowed for recovery of Rs. 20,000/- (Rupees twenty thousand), the insured amount along with interest @ 9% and cost of Rs. 500/- (Rupees five hundred) was also allowed.

THE brief facts of the case are that the complainant filed a complaint with the allegations that he had taken loan of Rs. 40,000/- (Rupees forty thousand) from State Bank of India, opposite party No. 1 for purchase of two mules. He purchased the mules and each mule was insured for Rs. 20,000/- (Rupees twenty thousand). Tag numbers were separately given to each of them. One mule bearing tag No. NIA-98/321902/4302 died on 1.9.2000. Information was given to the Insurance Company. THE doctor has also done examination of the dead body. After completing the formalities, the claim was lodged with the Insurance Company but the Insurance Company repudiated the claim on 30.11.2000 on the ground that there was difference of colour in the mule insured and the dead mule. The bank in its written statement has specifically admitted that it has sent the claim form along with the tag and report of the doctor on 22.11.2000 to the Insurance Company.

The Insurance Company in its written statement admitted the insurance of the mule for Rs. 20,000/- (Rupees twenty thousand) but said that during the investigation the colour was found to be different than the mule insured. It was further alleged that the mule, which died, was purchased in April 2000 while the insurance was done on 15.11.1999, therefore, the claim was repudiated.

THE learned Forum after taking the evidence of the parties and hearing them came to the conclusion that the mule died on 1.9.2000. THE post-mortem was done the same day and it is in the presence of the doctor that the tag was taken out. It was sent to the Insurance Company. THE learned Forum did not believe the affidavit of Sh. B.S. Rana on behalf of the Insurance Company. THE Forum further held that in the report of the surveyor, the complainant has stated the same colour of the mule, which has been purchased. Regarding the purchase of the mule in April, 2000, the learned Forum did not give any finding but this statement appears to be incorrect on the face of it because there is no case of either of the parties in complaint or in the written statement that any mule was purchased in April, 2000. Every mule is insured after inspection. Tag number is given after inspection. How there can be insurance when the mule itself has not been purchased cannot be explained by the learned Counsel for the Insurance Company. THE post-mortem of the dead mule has been done on 1.9.2000. THE doctor has also mentioned the tag. THEre is no dispute regarding the amount of insurance and the price of the mule. Sh. Shardul Negi appeared earlier on 21.4.2004 but on the date of arguments none appeared on behalf of the opposite party. Therefore, the appeal was heard ex parte.

WE have heard the learned Counsel for the appellant and gone through the records. WE do not find any infirmity in the order passed by the learned Forum. The mule of the complainant has died. The theory that it was purchased in April 2000 is meaningless. There is no evidence that any third mule was purchased in April 2000. To the contrary the loan was taken from the bank and the bank has specifically certified that it has given the loan and mule was purchased and it died and the claim form along with the tag, etc. was sent to the Insurance Company. We do not find any force in this appeal and the appeal is liable to be dismissed. However, as regards the interest, the learned Forum has allowed interest till the date of payment but in this case the complainant himself has delayed the proceedings. The learned Counsel for the opposite party appeared on 30.7.2002 asked for time. He did not appear on 14.8.2002 and again on 2.9.2002 the complainant applied for time, 16.9.2002 was fixed. He again applied for time, again 3.10.2002 was fixed. On 3.10.2002 he applied for time and 23.10.2002 was fixed. Again on 23.10.2002 he applied for time. It was observed by this Commission that the complainant is applying for time regularly, date may be given to him but the appeal should be kept in abeyance and when the complainant is in a position to argue he shall argue and this order was passed that the case be put up after 6 months. On 21.4.2004, the learned Counsel for the complainant applied that a date may be fixed and the case be heard. Date of 9.6.2004 was given but on this date also the learned Counsel for the complainant did not appear. The complainant cannot get advantage of his own laches. Since he has delayed the proceedings just in order to gain interest. Therefore, it is proper that he should get interest from 29.1.2001 till 30.7.2002 only at the rate as fixed by the learned Forum. With the above modification regarding interest the appeal is to be dismissed. ORDER The appeal is hereby dismissed with the modification that interest shall be paid from 29.1.2001 to 30.7.2002 @ 9%. Rest part of the order under appeal is hereby confirmed. Cost of this appeal shall be easy. Appeal dismissed.